CIHM Microfiche Series (Monographs) ICMH Collection de microfiches (monographies) m Canadian Instituta for Historical Microraproductiona / Institut Canadian da microraproductiont historiquas • It Technical and Bibliographic Notes / Notes technique et bibliographiques The Institute has attempted to obtain the best original copy available for dinning. Features of this copy which may be bibllographically unique, which may alter any of the images in the reproduction, or which may significantly change Xhn usual method of filming are checked below. D D D D Coloured covers / Couverture de couleur I I Covers datr^^ged / I — ' Couverture endommag^ I I Covers restored and/or lam,, ,ated/ ' — ' C lUverture restaur^ et/ou pelliculee I I Cover title missing / Le litre de couverture manque I j Coloured maps / Cartes geographiques en couleur I I Coloured ink (i.e. other than blue or black) / — Encre de couleur (i.e. autre que bleue ou noire) I I Coloured plates and/or illustrations / ' — ' Planches et/ou illustrations en couleur Bound with other material / Relie avec d'autres documdnts Only edition available / Seule edition disponible Tight binding may cause shadows or distortion along interior margin / La reliure serr^e peut causer de I'ombre ou de la distorsion le long de la marge interieure. Blank leaves cdded during restorations may appear within the text. Whenever possible, these have been omitted from filming / II se peut que certaines pages blanches ajoutdes lors d'une restauration apparaissent dans le texte, mais, lorsque cela ^tait possible, ces pages n'ont pas && filmies. L'Institut a microfilme le meilleur examplaire qu'il lui a ete possible de se procurer. Les details de cet exem- plaire qui sent peut §tre uniques du point de vue bibli- ographique, qui peuvent modifier une image reproduite, ou qui peuvent exiger une modifications dans la meth- ode normale de filmage sent indiques ci-dessous. I I Coloured pages / Pages de couleur I I Pages damaged / Pages endommagees I I Pages restored and/or laminated / — ' Pages restaurees et/ou pellicultes D D D Pages discoloured, stained or foxed / Pages decolorees, tachet^s ou piquees Pages detached / Pages detachees Showthrough / Transparence Quality of print varies / Quality inegale de I'impression Includes supplementary material / Comprend du materiel supplementaire Pages wholly or partially obscured by errata slips, tissues, etc., have been refilmed to ensure the best possible image / Les pages totalement ou partiellement obscursies par un feuillet d'errata, une pelure, etc.. ont ete filmees a nouveau de fa;on a obtenir la meilleure image possible. Opposing pages with varying colouration or discolourations are filmed twice to ensure the best possible image / Les pages s'opposant ayant des colorations variat>les ou des decol- orations sont filmees deux fois afin d'obtenir la meilleur image possible. D Additionai comments / Commentaires suppl^mentaires: Thill Cedo lOX wmis cumai filma y>^l^k ^ilUcOiU v^ K'fl MAGNA CARTA AN ADDRESS DILIVeilBD lY WILLIAM RENWICK RIDDELL. LL.D., F. R. isl. Soc., JutllM of lh« Supram* Court of Oourio. THE LAW ACADEMY OF PHILADELPHIA May 3, 1917 Pobliabnl by Tht Law AMdcmy ol P1iirid«[phii 1917 J." ■( / Committee on Annual Address I. Smith Raspin, Chairman H. EuQENE Heine, T. Henst Walnut, Palmes Watson, Samuel W. Woolfobd, Jr., Edward Seville Smith, Ex-Officio. MAGNA CARTA BY WILLIAM RENWICK RIDDELL, LL.D., F. R. Hist Soc., JustiM of the Suprtn* Court of Ontario, PROEM In the year of Grace, twelve hundred and fifteen, there was gathered in the Meadow of Eunnymede by the Thames between Staines and Windsor, a "Con- gress into an extraordinary session because there" were "serious, very serious, choices to be made and made immediately." It was still (even in England) the time of "the old unhappy days when the people were nowhere consulted by their rulers": an autocratic King claiming to rule by Right Divine and not by the consent of the governed, whose acts were based "only in the selfish designs of a Government that did what it pleased," had contemptu- ously disregarded the ancient rights of his people, had repeatedly for his own interest and that of "little groups of ambitious (and greedy) men who were ac- customed to use their fellow men as pawns and tools," "put aside all restraints of law and of humanity," had violated the law which "by painful stage after stage" had "been built up with meagre enough results indeed after all was accomplished that could be accompUshed, but always with a view," more or less clear, "of what the heart and conscience of mankind demanded." Occasionally and for a time "in the progress of the cruel and unmanly business * * * , a cer- tain degree of restraint was observed"; but the king had gone from bad to worse, "the new policy * • * swept every restriction aside" and the Government had "thrown aside all considerations of humanity and right," "put aside all restraints of law or of humanity." The Barons of England with the higher Clergy had the choice to submit or to resist, if need be to fight — the choice was unhesitating — "We will not choose the path of submission and suffer the most sacred rights of our nation and our people to be ignored or violated"— "we are * • * of the champions of the rights of mankind" — "the wrongs against which we now array ourselves are not common wrongs ; they cut to the very root of human life" and all that makes life worth living. "Our object * ' * is to vindicate • • • justice * * * as against selfish and autocratic power and • • • henceforth insure the observance of" that principle; "we are now about to accept gage of battle with this natural foe of liberty, and shall if necessary spend the whole force of the nation to check and nullify its pre- tensions and its power;" "our motive will not be re- venge or the victorious assertion of the physical might of the nation but only the vindication of right, of human right." By bitter experience they knew that "no auto- cratic Government could be trusted to keep faith * * * or observe its covenants," could be a partner in "a league of honor"— broken faith had proved to them that they must be prepared to enter upon war, that they might be "forced into it because there" was "no other means of defending" their rights. They knew, too, that there were very many foreigners within their country, brought in and sup- ported by their foe, that the king in his autocratic Government was "backed by organized force which" was "wholly controlled by" his "will not by the will of the people." But they felt that "right was more precious than peace"; and notwithstanding that there might be "many months of fiery trial and sacrifice ahead," they mustered their forces and marched to Runnymede, dedicating to their task their lives and their fortunes, everything that they had, and defying (he "lawless and malignant few" who would for their own non-patriotic reasons, support the lawless and tyrannical violator of right. God helping them, they could do no other. What they did is embodied in Magna Carta, the great Charter of the liberties and rights of all Eng- lish speaking peoples and powerful in its influence, direct or indirect, in establishing our conceptions of liberty and right throughout the world. Nearly seven hundred and two years after that memorable Congress, another Congress met in a city upon a continent unknown to, undreamt of by John and his Barons, to consider the acts of a World-crim- inal. The results of the work of that Congress are as yet in great measure hidden in the womb of time ; but who may doubt that the principles inherent in Magna Carta will, through the efforts and the sacrifices of those who are saturated with its spirit — ^Americans, 6 thank God, taking their full share-triumph in world affairs and international law aa in affairs and law between man and manT We Canadians, joint heritors of the Great Charter joyously and exultantly welcome our American breth- ren to the mighty, the last struggle for democracy, for international justice, right and good faith, the Arma- geddon of all the ages, the glory and the pride of our peoples who as they live so would they die for "what- soever things are honest, whatsoever things are just whatsoever things are of good report. " We know that we are one with you in all that is worth while and are as one prepared together to do all and sacrifice aU for our ideals of right and democracy. I am now to speak of that Scrap of Paper we call "MAGNA CARTA"' • "Whatever Magna Carta may be in law, whether a treaty between king and subjects, a charter or grant from the king, a declaration of rights, a constitution, a statute or what not, it is also a long and miscellaneous code of laws."' And this code of laws has been appealed to in all succeeding generations in England and her Colonies as assuring their dearest rights. Sometimes, indeed It has been the subject of rude and coarse jibe-the' great Cromwell despised or affected to despise Magna Carta, and Chief Justice Kelyng did not hesitate to imitate^.' Cromwell, however, was at the time • Num«r.l. „l„ to the notM .iLchad at th. .nd of th. tert. indifferent to, as he was above, aU law; and Kelyng'g life and conduct were at all times a scandal to the King he served and to the law he wag supposed to admin- ister. In most instances, the mention of Magna Carta was received with respect and even reverence; and to this day there are no English speaking peoples who do not take pride in it. Much of it has been repealed, much has become obsolete even in England, much never was applicable to a new country like one of the Thirteen Colonies or Canada; but the spirit of that wondrous document lives wherever our freedom exists. Other nations have their own conceptions of liberty, their own kultnr, which has nothing in common with Magna Carta and to which the principles of Magna Carta are as foreign as they are to the Aleutians: but we * * * who speak the tongue That Shakespeare spake; the faith and morals hold That Milton held, are saturated with the spirit of the Charter, it is part of our birthright— and may I add "We must be free or die" in part for that very reason. So proud were our ancestors of it end its congener, the Carta de Foresta, that Sir Edward Coke in the Proeme to his Second Institute (which contains a valuable and learned Commentary on the Great Charter) says that they "have been confirmed, established and com- manded to be put into execution by thirty-two several Acts of Parliament in all." * It was not without reason that many American lawyers of the highest standing united two years ago 8 in celebrating the Seventh Centennial Anniversary of the Sealing of the Charter by King John at Bunny- mede on June 19th, 1215. For the Constitution of the United States is implicitly adumbrated in it as is the Bill of Bights of 1689. In all institutions we must look below the surface and find the soul underlying the form. Not quite right was he who said "For forms of government let fools contest, Whate'er is best administer 'd is best"; ' many law-abiding, patriotic Americans would fight to the death before they would submit to a monarchy, and many law-abiding and patriotic Canadians would fight to the death against a republic. But there is morp than a grain of truth in Pope's apothegm. The Canadian with a King who reigns but does not rule and the American with a President who rules but does not reign have the same conceptions of liberty, the same ideals of justice, the same aspirations toward in- dividualistic freedom of act, thought and speech, com- bined with a state repression of act or perhaps even of speech noxious to the community — freedom accord- ing to law. That result necessarily follows from the democ- racy of those peoples which for want of a better term we are accustomed to call the Anglo-Saxon peoples. ' Democracy is not a form of government but a state of thought. A century ago. Upper Canada had on paper almost the same form of government as Ontario has today — yet a century ago the common people had almost no control over the Administration, today the Adminis- 9 tration bows and mast bow to the people in everything, must justify every act to the electorate or cease to bo the Administration. A little more than a century ago, an unwise if conscientious king could lose to the Empire, flourishing Colonies which desired to remain loyal if they could be loyal consistently with self-respect— Colonies which did not set out to separate from the British Crown but which were forced to choose between being loyal and being free. Today, no king would venture on such a policy — and if he did he could not carry it into operation. And yet the constitution of the Mother Country is not altered externally— but the whole soul and spirit of her institutions have suffered a revo- lutionary change. It is not alone or chiefly in the letter of Magna Carta, the form or the content of its provisions that we are to look to discover its importance and revo- lutionary character but to the tendency, the implica- tion of the whole magnificent document. It is significant that it was wrung by force from a king of Norman descent. The ancestors of the Eng- lish people had before the Norman Conquest looked upon their kings as chosen by themselves to rule over them; and the noxious absurdity (according to our democratic thought) of Divine Right had scarcely a footing amongst them. When Aethelred the Unready dl.spleased his people, the Witan promptly deposed him and later recalled him on his promise to do better— the Saxon King was a President for life subject to recall. The Norman Conquest set back the hands of the 10 clock for centnries in this as in many other essential! of oivUization— as we understand civilization. The Norman kingrs claimed by conquest although they did bolster up their right by an empty and formal aoolaim by the people of England; and they also claimed the throne by the Grace of God, that is by Divine Eight It was with a king who looked upon himself as the vicegerent of the Almighty that the Barons had to deal; but they did not admit that they were traitors to God or that they warred against Him. The language of courtiers is proverbially fulsome with flattery— the address to King James I, four hundred year.s later, of the translators of the Authorized Version of the Bible, rouses the gorge of the people of today— that shamb-' Img cowardly king was like "the Sun in his strength," whose "confidence and resolution" had "so bound and firmly knit the hearts of all Your Majesty's loyal and religious people unto you that Your very name is precious among them": he was "that sanctified person who under God" was "the immediate Author of their true happiness"- and more of the same kind. But these very translators would have promptly raised the standard of rebellion against that marvel of wisdom and strength if he had attempted to aUow his zeal toward the House of God so much lauded by them to show itself in favor toward the "Popish Persons at home or abroad" or the "self conceited Brethren who run their own ways," whom they so reprobated. ' His son, Charles I, found how far his people be- lieved in Divine Right of Kings when a quarter of a century later, he lost his head literaUy, having long be- fore lost it metaphorically— and his son James had to 11 go on his travel, beoauie he pre.nmed too far on the forbearance of his "loyal eobjeoti." And, too, however courtly in their speech toward King John, were his subjects, they did not hedtate to employ force to achieve their ends. It is the unhesi- tating use of force to attain their rights from a sover- eign, which distinguishes a free people (as we under- stand freedom) from an abject people. No matter how strong, learned, pious a nation may be, if and so long as it beheves that its sovereign reigns by the Ora^e of God, that he is really the donee of a power of which God 18 the donor, and that he does not owe his sovereignty to the consent of his 8ubjeots-th.se sub- jects are not freemen, they cannot conscientiously use force against him, anything they wish they mav ask for but not demand, anything they may obtain i not a right but a gift which may be recalled-thev are subjects m reality as we British are subjects in name. With kings who have that conception of their posi- tion, negotiation may be successful for a time but, as has recently been pointed out in a Statp Paper of tran- scendent importance and great ability, "No autocratic power could be trusted to keep faith * * • or observe its covenants." • Accordingly the Barons using force as they did to obtam promises, did not fail to provide means where- by these promises would be implemented-they took possessi„n of the City of London, the Archbishop of Canterbury (their colleague), of the Tower, and pro- vision was made for the election of twenty-five Barons of the Kingdom to cause the terms of the Charter to be observed. 12 Had thii provition been carried into effect mnch of the Bubtequent trouble would have been avoided; fail- ing it, England had again and again to experience the Punica fides of her kings. PaBaing, however, from that unhappy considera- tion, we may notice that it ia not without aignlficanco that while those who forced the Charter from an un- willing king were Barons, they had the common people with them — inarticulate as these were and for some time were to be in affairs of state, the commonalty of London secretly agreed to open their gates to the Barons; and notwithstanding that King John secured himself in the Tower, the City, defying his vengeance, opened Aldgate and the reforming Barons marched in thereat. True it is that most of the provisions of the Charter are made for the advantage of the nobility and their ' 'nants ; but underlying the form there is ever found the principle which looks forward to the times vrbon the common man will be recognized as the real object of the State's regard, whose well-being must always be in the eye of the State. The first thing I notice is the set of Articles con- cerning the Courts.* It is impossible for a stndent of the ancient law not to recognize that the Royal Courts of Justice were considered a personal appanage of the king and that a main object of their existence was to secure to the king * Mj rcferenen are to the Charter at given in Uiebard Thornton '■ "An Historical Eisaj on the Magna Charta," London, 1829, which ie the treatiae most generally available. A more recent work is HcKech. nte's Magna Carta, Glasgow, 1915. Sir William Blackstose's sumptooni and valuable volumes should not be overlooked. u 13 • •uffieiont revenne. Whatever might be aaid of the local conrta, the king 'a conrta were a coatly luxury.* Being preaidcd over by conrtiera, mombera of the houaehold of the king, theac courta naturally followed the king in all hia joumeya throughout the realm — and if there ia one thing more noticeable than another in the ancient kinga, it ia their conatant journeying from one place to another. Much of thia wan of courae due to the Royal Prerogative of taking for the king's uae any chattel property of the aubjcct at a price to be fixed by the king'a officer. Naturally the aupply would run out at the place at which the court waa atationed ; and purveyora must aeek fresh fields and pastures new — and the court would move again. Or it might be that the king would graciously favor one of Lia aubjecta by abiding with him for a time, the glory of entertain- ing a king being supposed to be an equivalent for the ruinous expense.'' The Royal Courta following the king, the auitort must needs do the same, to their constant uncertainty, their frequent inconvenience and their occasional un- doing. It was accordingly provided in the Charter that that court or portion of the court (I do not enter into contentious mattera) which dealt with cauaea between subjects should be atationary; and cap. XVII was framed — "Communia piacita non aequantur curiam nostram aed teneantnr in aliqno ccrto loco."" This was the first definite pronouncement that the courta were for the people's convenience, not for the king's advantage. " And our courts have today their seat at some fixed u pUc«, oonvonieat for roitor. and not whm . kin. . pr..id.iit or .governor may chance to b. for the iL. bting or may direct them to be held. Proviiion wat al.o made for trUl eoorti littini in ..ch County fonr time, a year, th„. bringing ;S the intolerable bnrden and expenae of leaving their own County and traveling to We.tmia.ter or eUe- where to perform their functions. Little advantage would be derived from courts, wherever they might sit, if the judges were not versed n the law they were to administer. In the olden time it was not legal knowledge or high attainments which procured an appomtment as Judge or even Chief Ju,. ucar-too often U was the royal favorite who became he ,ud.c.al officer, not that he might do justice accord- ng to the law, for he was not infrequently grosslv by fees or bribes and the royal income by fines. Cor- may. The King promises, cap. XLV, "Nos non facie- mus Justiciarios, Oonstabularlos, Vice-Comites, vel Sr^rt'^'brirS r '"'"" '«-- -^' »' - While constables, sheriffs and baUiff, continued and still continue to be appointed who are laymen, they are liable both civilly and criminally for violation ^f the law-and while a Lord Chancellor or Lord Keeper might for some centuries be appointed from th->se who were not lawyers... Judges began shortly aft.r the Oiarter, and no doubt largely in eonsemence of it, to be appointed almost exclusively from the Bar. IS By the Britith North America Act 1867, the written Con.titution of the Dominion of Canada, aU Judgei must bo appointed from the Bar of the Provinoa 10 which thev are to act; by the Statute, of Ontario, even a County Court Judge mu.t have been at leaat "even years at the Bar of the Province. " In EnKland for a time the House of Lords sat ns a whole as the final Court of Appeal, but for many years the Lay Lord, have not taken part in such matters. " It took six hundred year„ -nd more to get rid of the iay.judffe in England; but the principle was de- clared in Magna Carta-and i. it not the same in es- sence as the prinei.ilo that it is the law that must govern not the will of men cnpriclously exercised f The same underlying thought was responsible for the provision, "Nullus Vicecomes, Constabularius, Coronatoros, vel nUi Ballivi i,ostri teneant plaoita coronae nostrae."" In the Court., the right of life, lib- ty and prop- erty were to be protected. "Nullus Ballivns ponat dc cxetero aliquem ad legem, simplici loquela sua, sine testibns fidciibus ad hoc inductis."" The full explanation of this provi- sion would require the discussion of law now happily obsolete; it is sufficient to say that the meaning is that no one against whom a charge is made is hound, simply beer use a claim is made against him, to prove the claim to be unfounded-he is not "put to his law" until credible witnesses arc adduced against him; in other words the plaintiff must prove his case before the defendant can be called upon, a cardinal principle in 16 our jurisprudence. It involves also the principle that anyone charged with crime shall be considered innocent until he is proved guilty— that his guUt must be proved by witnesses and not by confession wrung from him by torture, physical, moral or mental— it excludes the French system which suggests that an accused must be held guilty till he proves his innocence— it excludes equaUy the hideous "Third Degree" which disgraces some English speaking communities to this day. Then comes the corresponding protection to one charged with an offence against the State— " Nullus liber homo capiatnr vel imprisonetur aut dissaisiatur aut utlagetur ant exuletur aut aliquo modo destruatur; nee super enm ibimus, nee super eum mittemns, nisi per legale judicium parium suorum vel per leeem terrae."" Whatever may be the origin of the jury system and whatever may have been its prevalence at the time of the Charter (and perhaps the last word has not yet been said on either point). Magna Carta made it by this clause a cardinal principle in English jurisprudence. This is not the time or the place to discuss the merits or the beauties of the jury system— while we in Ontario have got rid of it in the vast majority of cases, it has free course and is glorified in most if not all of the United States. =» It would appear that the Barons introduced this clause, fearing that they might be de- prived of their right to be tried by their peers, the other Barons; and that they might be tried by justices ap- pointed by the king who would be professional and not occasional judges. They bnilded better than they knew —the King's Courts became the refuge and proteo- 17 tion of the innocent accused, and the common man was tried by a jury of common men and his peers, while the Baron had his jury from his own class. As the Eoyal Courts and not the local courts administered justice, the criminal law of England became uniform, an enormous advantage. If we in Ontario have forgotten the merits of the jury we have not failed to remember and act upon the spirit of the next section. "NuUi vendemus, nulli negabimus, nulli differimus, rectum aut justitiam."" I do not know that anywhere in the English-speaking world ia it charged or if charged generally believed, that justice in the Courts is sold, seldom is it thought that justice is absolutely denied; but is there no coun- try, no State where justice and right are delayed! And is not the delay of justice, a denial of justice f Is not even the time taken up waiting for a hearing, a denial of justice t Not only does hope deferred make the heart sick but delay often produces irreparable loss — not only is the law blamed and the judges cursed, the administration of justice brought into disrepute — a public loss and calamity— but there often is private loss, private calamity. That being so in civil matters, not less important is reasonable speed in criminal cases — punishment loses half its effect if not promptly administered, and no one gains by delay but the criminal and his lawyer. In the Dominion we think that if a murderer is not hanged within a year of his crime he has the right to complain that he has been deprived of his rights under Magna Carta. " In connection with this should be read the earlier section "Nihil detur vel capiatur de caetero pro Brevi 18 Inquisitionis de vita vel membris, set gratis coDce- datur et non negatur." " In the change in criminal proceeding brought about by subsequent legislation, this clause became useless and ahnost unintelligible; but it was long a living and important reaUty. One committed to gaol on a charge of crime might be imprisoned a long time before trial ; and at the trial it might appear that there was no foun- dation for the charge. In view of this possibility, the law provided that he could sue out a Writ of Inquisi- tion—Breve de Odio et AciS or de Bono et Malo— upon which the Sheriff must inquire whether he had been committed on just cause of suspicion or from hatred and ill-will (odium et aciam)— if the latter turned out to be the case, the prisoner had a right to be admitted to bail. " This provision of Magna Carta throws a lurid light on the practices of the Eoyal Officers whose duty it was to issue these writs; and of course, the writ itself was the early predecessor of the writ of Habeas Corpus (which did not come into general use until about the end of the 16th century). The unlawful taking by the King or his officers of the property of the subject is restrained by several sections— the "BeUcf " to be paid on the death of those holding direct from the King is kept down to the "antiquum relevium," the ancient relief ^"— towns or private individuals were not to be obliged to build bridges or river-embankments except such as they had been accustomed to build as of right =»— only reason- able amerciaments were to be assessed and these not to deprive a merchant of his goods or the villein or 19 laboring man of his cart— "for trade and traffic" says Coke "are the Uvelihood of a merchant and the life of the commonwealth"; and it would be brutal to take away the laborer's cart and make the miserable crea- ture carry his fertilizers on his back. "' "Omnos Comitatus et Hnndredi, Trethingii et Wapentachii sint ad antiquas firmas, absque nllo incre- mento, exceptis Dominicis maneriis nostris."" The City of London and all other Cities, Towns, Burghs and Ports were to have all their ancient liber- ties and free customs in all respects. -' Custom is the life of the law. While purveyance continued to show its evil head for some centuries later, (for it was not formally abolished till after the Commonwealth), much of its evil was destroyed by the Charter— " Nullus Con- stabularius vel alius Ballivus noster capiat blada vel alia catalla alicujus, nisi statim inde reddat denarios aut respcctnm inde habere possit de voluntate vendi- toris." » The King had to have provisions, fuel, etc.; but his officers were thenceforward to pay on the spot for it (unless the owner voluntarily gave credit) and the immediate payment of "denarii" has a wonder- fully quieting effect both on the subject who must give up his goods a- the officer who might be tempted to exceed his mas. . 's necessities. All this is rudimentary Eminent Domain; but we do not at the present time recognize that there is that necessity to supply the personal wants of the king which characterized the ancients— indeed the whole frame of society has changed, open markets and the laws of supply and demand have made it possible for 20 the king to procure his supplies without forcing an un- willing subject. Where there is a real necessity as for land in a cer- tain place, the head of the State may still expropriate, but as in Magna Carta, he pays denarios down. The corresponding practice of taking the use of the common man's horses and carts for carriage of the king's goods was stopped by the Charter— " Nullus Viceeomes vel Ballivns noster vel aliquis alius capiat equos vel earrettas alicujus liberi hominis pro carragio faoiendo, nisi de volnntate ipsius liberi hominis." " We cannot allow the King to starve but he must send for his necessaries and not compel us to take them to him. By far the most important provision of the Charter, although it is certain that none of the parties. King, Bishops, Barons, thought so, is that which is the foundation of all freedom in a monarchy, that which gives control of the purse — "Nullum Scutagium vel auxilium ponatur in regno nostro nisi per commune consilium regni nostri * * • _" si The Commune Consilium, the Common Council, at this time was the body of tenants in capite, tenants holding directly from the king, and qualified shnply by virtue of that tenure. The king looked for his "aids" to his tenants in chief, and this clause provided that they, not he, should raise the aid, should grant him money. But the principle was fixed — no money was the king to have from his people except such as they were minded to give him. The time had not come when the Common Council was to develop into a Parliament, but it was to come, and when it came, the principle 21 of Magna Carta was not forgotten; Parliament held the purse strings and the king must look tc the Conunons for money to carry on his wars. Thus it was and is that Parliament in fact declares war, for it must supply the means to carry it on— and thus the Congress of the United States is wholly seized of all questions of peace and war."" In some nations, the king may alone declare war, at least if the war be defensive ; he judges whether it is defensive, and if he wants war, it is sure to be defensive. While the Barons thus clipped the wings of the Hoyal power, the mesne Lords, the inferior Lords of the fee were also checked in their illegal demands upon the terre-tenant. "Nos non concedemus de caetero alicui quod capiat anxilium de liberis hominibus suis, nisi ad corpus suum redimendum et ad faciendum primogenitum filinm suum militem et ad primogenitam flliam suam semel maritandam ; et ad haec non fiat nisi rationabile auxilium.'"" This was in reality to fix the amount of rent for which the immediate occupant of the soil was to be liable. While merchants were to be free to come into and go out of England and to buy and sell, and foreign merchants were in time of war to be treated as well as English merchants were by the hostile belligerent" (for commerce was the life of the nation), care was to be taken for one set of weights and measures, common to the Kingdom — "Una mensura vini sit per totum regnum nostrum et una mensura cervisiae et una men- sura bladi, scilicet quartarium Londonii:et una latitude pannorum tinctorum et russettorum et halbergettorum, 1 T)e . ideribus autcm 22 Bcilicet, duae ulnae infra listas. Bit nt do mensuris."" Subjects also were to be allowed to go out from England and to return safely and securely by land or water '-salva fide nostra," saving their allegiance, un- less it be in time of war." This "salva fide nostra" is very important— at the Common Law of England, no subject could without the will of the Sovereign divest himself of his allegiance— " Nemo exuere patriam pos- sit"; and this proviso was intended to preserve the right of his Sovereign and country to the faithful allegiance of the natural born subject. It will be remembered tliat there has been a claim made that the war of 1812-14 was due at least in part to the practice of Britain seizing and "pressing" her natural born subjects who had become American citi- zens; this practice was based upon the Common Law of England (and of the United States) as laid down by all text-writers, English and American, and affirmed by the Supreme Court of the United States from the first and as late as 1830. The Treaty of Ghent was silent on the subject. Britain refused to give np her right j the negotiations between Webster and Ashburton in 1842 effected nothing as to this and Britain retained her right until 1870. Tlie principle is not very unlike that principle vigorously disputed but still more vigor- ously and successfully maintained half a century ago that an American State .annot leave the Union— "Nulla natio exuere patriam possit." It never was contended by any English-speaking people that a sub- ject mignt on becoming a citizen of the United States obtain permission to retain his former allegiance at i 23 the samo time and so in case of dispute be a traitor to one country of his alleRiance or the other; that dis- covery was made by another nation whoso conception of international law and international decency all know, because it is the marvel of the ages— I do not add, the admiration of the world. Certain private rights of property are protected ; the widow has her qunrantiRe and her dower free from her deceased husband's debts and is not to be forced to marry that she may find a protector— thereby a status is secured to her a little higher than that of a cow." Orphan children arc not to be defrauded of their heritage by guardians who take charge of their estate during their infancy, whether the guardian be a kinsman or a person appointed by the king who is parens patriae; and if the father die indebted to the Jews or others, the children must first be provided with necessaries and the debt paid out of the residue and in any case no interest is to be paid on the debt as long as the heir is under age. •"' This is not wholly unlike the homestead law of some States and Provin- ces ; and indicates a consideration for the manhood of the kingdom before commercial considerations. A vivid light is cast upon the state of society of the time by the following section— "Si aliquis liber homo intestatus decesserit, catalla sua per manus pro- pinquorum parentum et amicorum suorum, per visum Ecclesiae distribuantur ; salvis unicuique debitis quae defunctis ei debebat."" The man who died without a will having no longer any use for his chattels and not having expressed his wishes as to their destination, was considered to have 24 abandoned them, and anciently the king became en- titled to them as "parens patriae"— after a time the kings gave these abandoned goods to the Church to do therewith what was best for the soul of the dead man; the Bishop was accountable to no one for his disposition of these chattels, too often not even the poor had any advantage from them, and rarely did the widow and orphan have any share. Creditors had no possible chance of being paid; the Church took all. This section enables creditors to be paid and the remainder of the goods divided by the hand of near relatives and friends— our "Administrators." Unfortunately this provision was more honored in the breach than in the observance ; flagrant abuses con- tinued, the church was aggrandized, the creditors, widow and orphan were defrauded for many years longer until the Statute of Westminster II in 1285 commanded that creditors should be paid, and a subse- quent Statute in 1357 directed that the estate should be administered by the nearest and most lawful friends of the deceased.<° This injustice therefore existed for nearly a century and a half after its abolition had been solemnly provided for; during all which time, they who "sent widows away empty" were high in the Church and often in the State— whether or not they for a pretence made long prayers, they braved the woe pro- nonnced by the Master upon those "who devour widows' houses." Other and more public wrongs were directed to be righted. Some living on the Thames and other rivers, built weirs across the stream with a narrow sluice at their own side of the stream; the fish with 25 which the English rivers at that time teemed were forced in their passage up or down to take to the sluice; there they were caught in shoals to the detri- ment of the other Englishmen living on the river and having an equal right to catch fish. These weirs, "Kydells" they were called, were ordered to be re- moved throughout all England-similar structures were allowed however at the coast where no man's right was interfered with. " In Canada and, I presume, in the United States, those who build dams on streams are bound to provide some means whereby fish may make their way up and down— this is simply preserving the riparian rights of everyone who has land on the stream. Much land had been withdrawn from cultivation and turned into forest— the terrible New Forest of the Conqueror is the best known example, but other forests were made. The deer and other wild animals were the property of the king and must not be killed on pain of mutilation, even though they should be found de- stroying the crops of the unfortunate farmer— a forest was a curse to everybody but Royalty and a few favor- ites. King John undertook to disforest all forests which had been made in his time and to abolish all evil customs of Forest and Warrens and the oflicers in charge of them. Moreover all fences whereby his subjects were kept from the rivers, the king was to remove at once." The Barons well knew that as soon as the king might think it safe to break his contract, he would be hable to do so— they saw to it that those who had been most active in wrong-doing in the king's service were 26 to be unt out of the kinRdom; but a more important proviaion was made cuncprning bia mercenary army: "Et statim post paeia rrformationem, amovebimus do regno omncs alioniKenas milites, balistarios, servientes ntipendarios, qui venerii't cum equis et armis ad nocu- mcntum rcgni. " " And ever since (as indeed before,) a large stand- ing army has been looked at askance, as a likely instru- ment of oppression and tyranny in the hands of an un- scrupulous monarch; all danger has been avoided by placing the military power below the civil power, a plan that would horrify the heroes of Zabern. Knowing that they and their people must suffer in all cases of conflict with the neighboring peoples, the Barons stipulated for conciliatory measures toward LIewell\-n of Wales and Alexander of Scotland, for the delivery up to the Welshmen of any lands wrongfully taken from them by the king, by his brother Richard or his father Henry II "—the first time per- haps in English history that foreign affairs were thus interfered with, but by no means the last. Where war is not entered on without an impulse from the people or without "their previous knowledge or approval," there will be few unnecessary wars. "We are at the beginning of an age in which it will be insisted that the same standards of conduct and of responsibility for wrong done shall be observed among nations and their governments that are ob- served among the citizens of civilized states"; nothing in my opinion will do more to prevent wilful wrong in- ternationally than giving those who must suffer, the right of declaring through their representatives 27 whether they will go to war. "Where public opinion command., and in.ii.ts upon full information concern- ing the nation's affair.," right is in most cases likely to be done. The hundred years of peace between the United States and Britain have been made possible only by both peoples standing by their pledged word and by their disputes being fought out in the open. Both have said A scrap of paper where a name is set Is strong as duty's pledge and honor's debt; and both have avoided intrigue and cunningly con- trived plans of deception and aggression— they felt and knew that any advantage obtained by fraud or cunning would be a real detriment not only to the world at largo but to themselves. As in the past so in the future, God grant that these nations filled with the sijirit of Magna Carta and with the consciousness of true broth- erhood, may be toward each other and toward the world, open in their aims, honest in their statements, true to their pledged faith, for so the world will be bettered in their betterment. Above all, be it ever remembered in the darkest days to come, "Only free peoples can hold their purpose and their honor steady to a common end and prefer the interests of mankind to any narrow interest of their own." NOTES Judgntnt, bM,»g much of hi. „i,j«,„m „p„, i,.,n. C.rti I- u ir^v!T r*; ""' °"°' °' "• P'-'"™ !••'• •»«"" oh«.f." !. ."."d^'J." ■■'""■^™ »' "" "•""• 0' ''^ — i»<™ .pp." (..o;r?or"B.°,3vrp. m""""' '° "■'" '• ^"^ °' '-"'°- «1..« of J„.,i« of .h. Ho.« of Co»„„„ „p,„,d ■'m, J", oir. J™!. ™ /"" "'*°' '^•'^ "■• »"" P'"«™ of our li,« freedom tod property." e 8t. Tr., roj. "^ "" '"•"' 4 An obj«.tioii.bl. prartic. i. oot uotommon in th. UdIM 8t>l. ^^!fS!:— •---.•-SIS lug of Judge. M " the Betorend. " •.—"■" oi .peu- »Popo'« En>7 00 Mu, Epiitl. iil, u. 303.4. 30 61 who am Deitber Angle nor Snxon. yet call myself " Anglo- Salon' ' in the lense n«ed here, i. e., "English or having the Barae language and the same conception of government, etc., as the English. ' ' 7 It does DO great barm to speak of King George V as King by the Grace of God, so long as «e carefully beat in mind as w«, the British folk, do that we mean and he knows we mean and the fact is that be is King by Grace of an Act of Parliament. 8 Of course, I refer to the epoch-making Address of the President of the United States to Congress on Tuesday, April 3, 1917—0 faustum et felicem bunc diem I Had Charles I not shown that it was impossible to rely upon his pledged faith ho would never have been executed. Vet there can be no doubt that, entertaining the views he did of the origin and character of royal power, he would have regarded himself as recreant to the trust given him by Cod, bad he kept the promises made to bis subjects which he bad been forced to give. The President's statement just quoted is in my opinion the most pregnant delivc-ance in this generation— no one but a historian would have thought of it, no one but a statesman made it the basis of action. I am quite sure its tremendous significance will display itself in the future of the world. 9 "The popularity of this Court [the Curia Regis] is attested by the nnmber of fines which litigants paid for writs, for pleas, for trials, for judgment, for expedition or for delay." Iloldsworth, History of English Law, Vol. 1, p. 27. All these were "honest graft" In the opinion of the king and bis officers. Even in the time of the Plantagenet Edwards and later, "The King's rights to escheats and forfeitures and the chattels of felons seem sometimes to interest the judges almost as mueh as the due maintenance of law and order." Holdswortb, History of English Law, Vol. Ill, p. 242. The learned author puts the case very mildly indeed: I should have reversed the comparison and said, "Sometimes the due maintenance of law and order seem to interest the jndges almost as much as the King's rights to escheats and forfeitures and the chattels of .elons. " 10 The right of Purveyance, as it was called, " was a right enjoyed by the Crown of buying up provisions and other necessaries by the inter- vention of the king's purveyors for the use of his royal household at an appraised valuation in preference to all oihers and even without the consent of the owner." Blackstone Comm., Book I, p. 287. This right will be spoken of more at length later on. Ijueen Elirabeth was a notorious sinner in the practice of imposing herself as a guest on her subjects, but the custom is noted of many monarchs to act in this way. 31 I hftre in the American Journal of Crimuikl Law for 1917 given an account of a trial for witchcraft arieing alrooet direetlj from a riiit of Edward II and his Court t ' the Prior of Coventry. ??• bia notes, pp. 197, 198, "Com- rt, (>.. mon Pleaa shall not -^Ilofv our O. place, ' ' 121 am not ann.^.lt'ii' of tha Jv ticea in Eyre; no one can read of the proceedings beiore jubuv^j ia Gjrre without seeing that much of their duty consisted io procuriug money for the Kingi very many of those who came before them were in mwericordid, in mercy, and liable to pay a fine. It might be noted that while the Court of Common Bench generally sat at Westminster, it occasionally sat elsewhere, e. g., at York in the reigns of Edward III and Richard II; at Hertford in that of Elirabetb. Edward III claimed the right to have it sit where be pleased, and apparently had the claim allowed. Holdsworth, History of English Law, Vol. 1, pp. 74, 75. Of course, the Exchequer always sat at Westminster where its offices, records and pipe-rolls were kept. 13 Thomson, p. 84 (XLV, 42). "We will not make Justiciaries, Constables, Sheriffs or Bailiffs except of such as know the law of the realm and are well disposed to obey it." Thomson, p. 240, says, "In the Statutes of King Ethelred it is ordained that 'a Judge wbo shall give any unjust judgment, shall pay to the King CXX shillings unless he be heard to swear that he did not know how to judge rightly' [I may remark parenthetieally that I fancy the chances would be 100 to 1 that he would not be "heard" so to swear and thus deprive the King of 120 shillings — at least $1000 of present value]. The Lawa of Canute add that be shnll be dismissed from his legal dignity if he do not redeem it from the King, according as it shall be allowed him. ' ' While a Judge acting within the powers of bis office is protected from action, he may be removed on the addrees of both Houses of Parliament in England and Canada — or impeached in the United States. More than one Lord ' Chancellor has suffered condign and more, speedy punishment. ' ' In the time of King Richard II, Earl Typtoft, a Chancellor," says Thomson, p. 240, "was even beheaded for acting on the King's warrant against the law : ' ' but Lord Campbell knows him not. Ez-Chancetlor Arundel in that reign was impeached and convicted but escaped death as he was an ecclesiastic; and unfortunate Simon de Sudbury was beheaded on Tower Hill by Wat Tyler and Jack Straw; but that wan on general principles, the same general principles enunciated later by "Jack Cade the Clothier" and "Dick the Butcher," namely, "the first thing we do, let's kill all the lawyers." King Henry VI, Act 4, Sc. 2. It ii almost if not quite certain that the person referred to as Earl Typtoft, 32 was John Tiptoft, Earl of Worcetter, who wu & CommiHioner of Oyer and Terminer, t. «., a Judge at the Criminal Amizet: be wai Lord High Treasurer and Chief Juftice of North Wales : aa Constable he tried and eentenced to be hanged several Lancastrians and when the wheel turned and Edward IV fled, the vengeful votaries of the Red Rose eaased his bead to be struck off. He was appoiDted Chancellor of Ireland in ]4'>2 (or, as the D. N. B. says, 14M) b; bis grateful sovereign; it does not appear whether he ever sat aa such. His execution was not for corruption, but vras purely political. See D. N. B., Vol. 56, pp. 4U-414; Haydn's Book of Dignities, p. 575. The impeachments of Francis Bacon, Lord Vernlam and of Lord Macclesfield are well known; and Lord Westbury had a rather narrow escape. Thomson goes on to say, If a Judge "who has no jurisdiction of a rsiir'4- give judgment of death and award execution, the Judge and the officer who executes the sentence are both guilty of felony." There was a very curious case on this Continent. When Canada passed under the British rule, Detroit was surrendered and Lieutenant Governors were sent out to command "Detroit and its Dependencies. ' ' These Lieutenant Governors or Commandants took it upon themselves to appoint Justices of the Peace, and in 1767 one Philip Dejean was so appointed: he also received a Commission from the Commandant, Major Bayard, aa "Second Judge" to hold a "Tempery Court of Justice to be held twice in every month at Detroit, to Decide on all actions of Debt, Bond, Bills, Contracts, nnd Trespasses above the value of £5 New York Currency." (In New Vork Currency, a shilling was 12^ cents — a York shilling or "Yorker" still in vogue on the north shore of Lake Ontario io my boyhood, fifty years ago. £l=20B=t2.50, «=*12.50.) When Henry Hamilton was sent as Lieutenant Governor in 1775, he allowed Dejean to continue in bis Court as Justice of the Peace, and Dejean went far beyond the limits of the authority of a Justice of the Peace. We are told that a man and woman were tried in 1776 by Dejean with a jury, six English and six French, on a charge of arson and larceny, and convicted of the larceny, but the jury ' ' doubted of the arson." The man was executed, it is said by the bands of th« woman who thus bought her freedom. The attention of the authoritiei at Quebec was drawn to the state of matters in Detroit by these extra- ordinary proceedings, and warrants were issued for Governor and Jus- tice. The Grand Jury at the Court of King's Bench at Montreal on Monday, September 7, 1778, presented Dejean for "divers unjust it illegal Terranical A felonious Acts" during 1775, 1776 and 1777 at Detroit, and Henry Hamilton the Governor for that be "toleratedi 33 offered and p,mit«d tbe same under bi, Go.eraMnt, guidance and diwtion "— bMce the warraol. The .tirring tinie> following the American invaeion of Quebec were on, and the offenderi eecaped immediate puniihment. By letter of April 16, 1779, Lord George Germain, Secretary of State for the Colonie. (afterwards ViKount Backville) .aid "The preeentment. of the Grand Jury at Montreal against Lieut.Gov. Hamil- on and Mr. Dejean are e.preeeiTe of a greater degree of jealouay than the transaction complained of in the then circumstances of the Province appeared to -arr«,t. Such stretches of authority are, however, only o be eicused by unavoidable necesaity and the justness and Htnes. of the occasion." He therefore ordered that the Chief Justice should namme the evidence of "the Criminal's Ouilt, and if he be of opinion that he merited the Punishment . . . . tho' irregularly iniicted ... a nolle prosequi' " should be entered. This was done. ,o,,^!.r7 t^'^"' ^'"' "" Michigan State Bar AawKiation, June, 1915, "The First Judge of Detroit and his Court." 14 Anthony Ashley Cooper, Lord Shaftesbury, wa, the last non- i'sTk 'rv'T" ,*?' ''°°""''' " ™ 'W"'"""! I'""" Chancellor in 18.2 by Charles II, and at once proceeded to make a fool of himself as all interested may read in Campbell's Lives of the Lord Chancellors, n J;''v' I ''''■ "" Christopher Hatton had been appointed by Queen Elisabeth apparently for hi. skill in dancing (1587) ; but Shafts, bury , appointment w.s for political reawns of the mo.t corrupt kind- no political machine, Tammany or other, could give points to the ancient Engish statesman. But no king or cabinet ever again ventured to ap- point a lay chancellor after Shaftesbury: and no one baa ever triumphed for long who showed contempt tor the gentlemen of the Bar Lawyer, are quick to resent and have long memories. p ,^^'„t ^- *■ *" <"'"' '"■'' ^'"•' '■ 3. •■"■ 97, 98 (Imp.), R. S. O. (1914) c. 58, s. 3. The County Court, are local Court, of Kecord of mferior and limited civil jurisdiction: but the County Court Judge, have very ejtended criminal jurisdiction. l«On this Continent, for many years the Second Chamber of the Final Court of Appeal: this came to an end mwty year, ago without regret on any side. (The Constitution of the State of Now York 1777 by Article XXXII provided "That a court shaU be instituted for the Inal of impeachments and the correction of errors, under the regnla- ,ons which shall be established by the Legislature, and to consist of the Pr«ndent of the Senate for the time being, and the Senators, and 84 JudgM of t'j* Supreme Court, or the major part of them"; there wu 00 proTiB-jD that the Senators should necessarilj be Uwjen, and the Datura! result waa that the lay Senators sometimes thought the judg- ment unjust, and voted to reverse it, notwithstandiog the fact that it was sound, as a matter of law. In other words, there waa a sort of referendum to selected lay Judges, as our Court of Appeals, and, as one may well judge from this Court coming to be called the "Court of ErTort," the plan did nut work very well. NeTerthelesfl, when the second Constitution was adopted in 1821, the same provision was continued in Article V. It thus came about that from 1777 until the Constitution of 1846, which took effect in 1847, or for substantially 70 years, the State muddled along with its Court of Errors. The result became more and more unsatisfactory to the Bar of the rapidly growing State. During all this time, it is said that Court had the courage of decision to condemn laws aa unconstitutional ooly three times. The Judges had alt been appointed down to 1846, and they had been men of learning and high character, who were too often humiliated by having their judgments reversed by the Court of Errors. In 1846, a wave of what was considered democracy swept over the State, and in the new Constitution appointed Judges were done away with, and in the place of the Court of Errors the Court of Appeals was provided; which Ckiurt consisted of four elected Judges of the Court of Appeals, and the four Justices of the Supreme Oourt having the shortest remaining period of time to serve before their terms expired. In other words, the Court of Appeals consisted of four Judges elected for terms of eight years, and the four Supreme Court Justices elected for the same period of time, whose terms would first expire. In this way, the senior Supreme Court Justices in matter of service ' :)natituted one-half the Court of Appeals. This Court of Appeals proved more satisfactory than the Court of Errors, but it was too fluctuating to be stable. Further- more, there was no provision that a Justice of the Supreme Court should Dot sit in review of his own judgment, an oversight which resulted in Justices of the Supreme Court thinking it their duty to sit in cases they had heard in the Court below, at times, with the naturally result- ing criticism of a Court that too often affirmed its own decisions. The result was that when the Const-tut ional Convention of 1867 sat, a pro- vision was made which was approved by the people (all the rest of the proposed Constitution waa voted down). It proposed a revision of tha Court of Appeals part of the Constitution, under which the people elected a new Court of Appeals for terms of 14 years, and that able Court soon began to give satisfaction to the people and the Bar, Except as to limitations of appeals, that Court was continued in practically 35 U. pr««lt fom by th. Con«i,„,i„. „, ,8«4, ,bich I, .till i. .««. rterf I. u lddit.OD.1 Mn.titutiOD.1 pioTiaioo, onder .hicb tfa. Got- emor ,«, .pp„i„, j„„i,„ „, .j, g„p„„. ^^^ ,^ ^^^ .__ ^^^^ ^^^ ^^ Ap>,al. ,heD tb< uJendu of tbat Conn i. overcro.dsd, .nd tbe Oo,- e„o, b« e..,c«d .b.t power for wm. ,«ini b, .pp«i„,i„g fo„ J».t,=«i ./ ,h. 8„p„„e Court .0 .ft u Jodge. of tb. Coirtof App..^.' ^io», I thuik, ,. reth . prKtic. known. Evm ,. I.t. u 1834 l.y ^T.r,?'^.t "°°" °' """" '° ■"" " 'Pl^'-tb. la.t o.c«io^ w« Jnn. 17 of lh.t 7,._in 1844 wb.o tb. »lel>r.ted O'Connor cue e.n>. on for deci.ion Km, non-leg.! p«r. .ttempted to vot. but on the Prfdent of tb. ComteU (Urd WlnrnclUTe) ..poetulMing, tbe, witb. drew. Urd Wbtmcliffe »id, .peiUting of tb. Uw Lord., 'l. pjint of u!:^e.n,.^ ■ '^' ,"■'"}"•'' "» CO"" •>' AP!««1. «»d if nobl; lord, udeamed .n tb. law .hould interfere to deeide .ueb ,u«tion. by their tote. .n.te.d of leavmg then, to tbe decision of tb. la. lord. I ,er, mueb fear that tbe authority of tbi. Hou« a. . court of juati^ would (1883) 8 A. C. 354, the »cond Lord Denman attempted to vote but h,. ,ot. ... Ignored. I have mjMlf wen bin. sitting in tb, Hou» aCt : '"'.'" T- "" ■"""■■« "' " ^■'■»'"' "■" •l-olu.e.y n" attention -„ pa.d to bin,-h. ,a. a ,.ll.known "eccentric" who died M .h^°'lT T'.^ "'; f"- '"'">■■ Courtenay. Working'coB.tituti™ of the United Kingdom, London, 1901, pp. 102, 103: Hold.worth'. H,.tory of tbe Engli.b Law, Vol. 1, pp. 187, 188. """•'"'rth . h„M P,"''°/.'l"'5' '^•""^''- ^'°'"' <•' "th" of our omcer. .ball It^r °',"",<^""™" "om^n, pp. 76, 77 (XXIV, 14) (we mu.t not be too critical of the gr.mmar-"He. .nper grammaticam. -) The ■°rX\'T "': """ "•f"""" '" °"«1' "Crowner'..qu„t la-.- I. that the lawl" .ay, th. Second Clown in the Churchyard to hi. earned and intention, colleague. "Ay marry L-t; crown„>.Jum law, ,n.wer. the wim Fir,t Clown (Hamlet, Act V, 8c. I)- and the haab the clown made of a famou. caw in 1562 (Halo, v. Petit Plow den'. Report,, pp. 253 »,q.) i. not much wor« than Coronet h^^. been known to make of the law in more modern time,. 18 "No officer .hall hereafter put anyone to hi, law on hi. own ^mple charge without credible witneMe. adduced for that purpoK ■■ Thom.on, pp. 80, 81 (XXXVIII, 28). purpoK. lawef „'/"" ''°'"'° ""," '" "™^ " ^P'isowd or di,p„«e«ed or out- lawed or in any way molested, nor will we condemn him or commit him 36 to priton except by tbB le^ jud^ent of hia pten or bj the Ikw of the reftlm/' ThomtoD, pp. 83, 83 (XXXIX, 29). (Perhmpi "Mt forth agaioit him or kdi] agftintt him" more neaily exprewet the mom of the original.) SO On the introduction into Canada in 1763 hj Royal Proclamation of the English law including trial hj jury, the French Canadians ex- prmeed their astoniehment at the English preferring to leave their right! to the adjudication of tailors and ahoemakerg rather than their judges, and we in Ontario have by a process of evolution almost reached the same mental attitude. Id an Address before the Illinois Bar Association, May 28, 1914, I stated as follows on this matter: "In Ontario there are %'ery few cases in which a jury is of right; D, pp. 66, 67 (II, 1): M to "Belief" aee Blackatone Comm., Bk. II, pp. 65, 66. 25 Thomson, pp. 76, 77 (XXIII, 11). 26 Thomson, pp. 74, 75, 76, 77, 201, 202 (XX, 9). 27Thomson, pp. 76, 77 (XXV): "All Counties and Hundrede, TrithingB and Wapentakes shall be at the ancient rent, without any iucreaae, excepting in our Demeane manors." (This is somewhat dif- ferently warded in McKechnie'e work.) 28 Thomson, pp. 72, 73 (XIII). 29 Thomson, pp. 78, 79 (XXVIII, 18): "No Constable or other officer of ours is to take grain or other goods from anyone without forth- with paying cash for them unless the vendor willingly gives credit. ' ' The Statute (1660) 12 Car. II, c. 24, finaUy abolished Purvey- ance and many other feudal absurdities: but the credit for this should be given to the Commonwealth which rendered the whole feudal system offensive to the nation at large— the influence of the Commonwealth upon English legislation and law generally was very great, and in every respect beneficial— perhaps this influence for good has not even yet received full recognition. "Royal Progresses" continued to survive for a time: hut now the King pays for what he gets like any one else. 39 so Thorn*)., pp. 78, 7» (XXX, 20) : "N, Sberiff or oa,„ ol our, or U7 ou .IM i, to take the horx. or <.rt. of .n; freemon for the purpoee of curjage without the ton«int of the laid freeman." SlThoi„«,n, pp. 72, 73 (XII, 32), "No acutage or aij ahaJI be ™po«.d ,0 oor rraJoi eac'epl bjr the Commoo Council of our Kinjdom (There are t.Uiog e.reption. depending upon feudaj law and cuatom but of no moment at the preaent and of little at an; time.) ajThla ia, of courw, the origin of the "conatilutional rule" that a monej vote. mui> originate in the Houee of Commona-and that the other Ilouae cannot amend or change them. In Canada, the Briliah North America Act (1887) apecificall, providea that "Bill, for approprialiog an), part of the public revenue or for impoaing any tax or import, .hall originate m the llouM of fommona." Sec, 5.1. Thi. i. intended to cryatallii. the practice at Weatmin.ler and to make it plain that the people hold the purae-.lring.. Sometime, for convenience bill, involving public eapenditurea are introduced in the Canadian Senate: the moner aection. are printed in the bill .o a. to make it intelligible, but thea. aection. are alwny. .truck out in Committee. When the bill i. „„, up to the Common., thei«, action, are in red ink or italic, and .applied to b, blank and inserted in the Common.. While by Bule of the Ilouie of Common, copied from the celebrated Kule paaaed by the Imperial Ilouae of Common., July 30, 1878 (9 E Con,. J. 23.5. 508) when the IIouM of Lord, rejected the Paper' Dutie. Bill, the "aid and auppllea granted to Hi. MaJMty ... are the •ol. gift of the IIouK of Common. . . . and . . . .„ch graat. ... are not alterable by the Senate," inatancea have been known not many in number and "not to be drawn into a precedent," that an' amendment in the Senate ha. been acquioaced in by the Common.-for example, when auch a coume haa been found neceaury ao aa not to delay the paaaage of a bill ■■ a late period of the Kaiion. Th« uaual courae, however, ia to give the Senate an opportunity of withdrawLDg ita unconatitutional interference. Where aa in the United Statea both Houaea are elaeted, the nocea- ■ity for auch • cooatitutional rule i. not .o manifeat. JS"We will not hereafter give leave to anyone to OMCt aida from hia freemen except to ranmm himaelf, to make hia eldeat R>n a knight and to give > dowry once to hia eldeat daughter: and not even theaa unleaa the amount ia reaaonable." Tbomaon, pp. 72, 73, 74, 73 (xv 6) It waa wholly natural that the Lord should be redeemed from captivity and hia eldeat Kn ahould be made a wldier: and in the then exi.ting condition of Engli.h Mciety (not yet wholly ob«,lete) . dowry wen' with the br.do: but the tenant, were to be called upon to pay dowry 40 only for tbe tIdMt dtughter uid for bar only oif* (not bc«tuM a divorce (Ourt wu then flouriihiog but berauw war public or priTfttc wu Kt one* the liuiinni and tlu recrMtion of a gntlrman, m nid on tbe S«ota or Ibe WeUb or even ■ diugreetlile neiftbbor ku tbe riiiting equirftleat of ft bunting trip to tbe Mtine or Cftstda mooee groundi aad tbe mar- taJitj wu quite u high m tmonget our deer-buntrri). S4Tboiiuoo, pp. 82, S3 (XU, 31). SSTboniMD, pp. 80, 81 (XXXV, 12): "There Bball be one meuure of wine tbrougbout tbe whole Kingdom and one m^uur" of ale and one tneaeure of grain, that la tbe quarter of London, and one breadtb of djtd cloth nod of ruwet and of balberjecti, namclj, two elii witbia tbe lietH, Alao it eball be the ume with weight! u with iieaauree." Thii is the origin of the "Wine Meaiure, " the "Ale or Beer Mf:iit:ire," the "Drj Meaeure" and the "Cloth Meaaure, " which thow (it my age will remember learning at ■chool. The "quarter" is eight buibeli, Mill used in the Engliih corn market, although on thii Conti- nent we alwaji use the bushel. Russets were an inferior kind of clotb dyed a dull reddish hue with bark (not unlike the "butternut" of AmericaL and Canadisn pioneera — I bare worn it) used generallj hj monks and rustin: balberjects, ba*. ' ^-?ets, haubergrtt or haU vtB, a Terj thick and coarse mixed English .'i.r'-. of various colors (not unlike our coarse tweeds) — tbe precise tn... ;.Liig does not s^em to be clear. Bee Murray's New English Dietionary. The "ulna" was the "Eng- lish ell" of 45 inches: the "lists" were tbe selvage strips (tbe word is used by Bbakejpeare in this aense). It is unfortunate tbat the provisions of this section were not put into full effect: and also unfortunate that so far as they were put into effect, tbe simple decimal division was not employed. We must not despair of seeing sneh a system become universal in commerce as it is (almost) universal in science. Sfl Thomson, pp. 82, 83 (XLII, 3.1). The claims of tbe United States and Britain at tbe outbreak of the War of 1812 are discussed in an Address by Hon. John W. Fost'.*r at tbe meeting in Washington, December 16, 1910, of tbe American Society for the Judicial Settle- ment of International Disputes a d Ut a series of articles by tbe Editor, Col. Asa Bird Gardiner and myself in the "Army and Navy Gaiette," New York, May 17, June 7, July 19, Novemtwr 1 and November 29, 1913. X have in my articles quoted tbe authorities rather fully. Web- ster's Works, Vol. V, pp. 145-6, 540; Vol. VI, p. 318; Winsor, Vol. VII, pp. 483-488. Mahan, Vol. I, p. 3, may be looked at. 87 Thomson, pp. 68, (19, 70, 71 (VII, 4; VIII, 17; XIII, 35). 41 UThoguon, pp. 70, 71, 78, 73 (X, 34; XI, 33), WThomwu, pp. 79, 79 (XXVII, 1«) ; "It anr (rwman ilia loin. Ul«, bii cfaatlil proprrl; ■bill l« dintribulnl by lh« banili of bii nnrril rtl«liT« ftod friends UDdtr the auperviiioB of tb« C'burcb, MTing to everyone the debte whlrh tbe dereniied (the ■pelliDg ihould be Me- funetui,' Bi McKefhoie bu it) owed biin." «OTbe Statute of Wcitminelrr n >• 13 Edirerd I, r. 19, In 1283i the aabaequent Btatute, 31 Edward III, St. 1, c 11, in 1337. llThomaon, pp. 78, 7a (XXXIII, 23>. "Kjdelli" are said to ba Btill in u« in Devon and Comirall on the ai^aroaat under tbe name of "Kettlea" or " Kettleneta. " Thomaon, p. 214. «3TlioDiion, pp. 84, SS, 86, 87 (XI.VII, 47i XLVIII, .19). UTbomsoa, pp. 8«, 87 (L, 40i LI, 41). "And as loon aa peace is restored, we will aenil out of lie kinitdum nil foreign knights, cro««- bowmen, meroenarj soldiera, who have come with horses and arma to th« injury of tbe kingdom." (McKochnie inserts a comma between "servientcs" and "atipendarioa," making both worda nouns, he trana- lates "Serjeants and nieri'enary soldiera" — I think incorrectly.) M Tbomaon, pp. 90, 91, 92, 93 (LVI, 44; LVIII, 43; LIX, 46). List of Addresses Dtllvarid Mori The Law Academy of Philadelphia MteriBk.'} 1«M ?'"■"'.'"' ^"^''"^ '"'■'" 8- D» Po""'" (!)■ 1W4 .lurincliition of the Court* •182fi «,°'< "'"/::"''■;' Stat..».,..lVt..r 8. Du Ponceau (2j. 1826 Study of the Uw ,„«.p,, Il„p|.i,„„„ (a,. ;.f„ I^" '" "' ""^ '"* '•='•»•«'■'' "■ Ingraham. 1830 Praetiee of the Law lohn JI. Scott 1831 Early History of the Aead- 1«ai P ""T. ■.■■ • ■ ■, ■; ^'*" ^- ^^ P"""*"- 18J1 LouBtitutlonal Law of the United States John K. Kane 1832 Study of the Law William Rawie 1833 Study of the Law Charles IngersoU. 18J4 Eulogium upon Antony 183o Profession of the Law William Kawle, Jr. 1838 Judicial History of Penn- 'y'™"'" Peter McCall. i> 'J Tity of the Legal "«'" Job K. Tyson. ^'^-■' '•• ■■ "I Foreign Missions. .Charles J. IngersoU (4). of Ph.l.delph,. before the Tni.te,. ,nd Member of tb. 8o«letr for the Promotion of L. oJ?"' "' '■'"'•*'P'''« " "» 'lo*- of tb. Academical ,„, on the 22d of April, 1824." ' (3) Pnbllabed in tb. "National Oarette and Literarr Bo.- later," Nonmber 22, 182«. ' (4) Publiabod in "PubUc Ledger," October 25, 1843. 44 .1846 Practice ot Law Pertain- "'' i„g t. the Shenfla^.^^.^^^^ porter (1). °®°' ■ • ■ V \L' Law " . . -WiUiam A. Porter. 1R49 Profession of the Ijaw.. 1851 Want of Uniformity m the Commercial UW « ^^ ^mi»„ Wallace. the Different States.^" 1854 Lien of Debte of a ^^'^^^^ ^. Biddle. cedent ' ' * 1855 Common Law of '""'Q^^ge Sharswood. sylvania ^^^ Harris Brewster. 1857 Practice of the Law ^^^^^ ^ Woodward. 1859 Law and Lawyers.... ^_- 1860 Mining Rights in fen ^ p^^^^rton Morns. sylvania ; ' 1861 Bights and Duties o ^ ^^^^^^ Brewster. Lawyers ^^^^ Cadwalader (2). •1862 Trial by Jury _••_ 1863 Contribution among ler ^^^^^ ^ ^.^^^^ Tenants '"■,'" -William Henry Kawle. 1868 Equity in Pennsylvania^^Willunn 1870 Law Considered as a r ^^^^ ^^^^^^ gressivc Science •_ 1872 Modifications of Englis ^^^f„i Dwight. Law in Pennsylvania. . . . ^-^^^^^ ^^^^^^ ^^^^^^ 1874 Contracts in Rem. . ■•.•■• 1875 Separate Use in Pennsy-^ ^^^ Mitchell. vania i, id 1873 Q»»'^'^«""™ Adv^te.^WiUiam A. Porter. ,i,er ■"''i*^^^'°°"\ . .James T. Mitchell. 1879 Motions and Rules..-. "«°^tl;nLmr. J.LClar.Hare.^^ 45 1893 Origin, History and Ob- jects of the Law Acad- emy of Philadelphia George Sharswood. 1883 Beminiscences of the Bar. . William S. Peirce. 1884 Law of Procedure in Cor- poration Meetings George M. Dallas. 1885 Article XVI, Section VII, of the Constitution of Pennsylvania Bichard C. McMurtrie. 1886 Codification David Dudley Field. 1887 Law Reform Michael Arnold. 1888 Boad to Success Edward M. Paxson. 1889 Profession of the Law William N. Ashman. 1893 Colonial Cases Samuel W. Pennypacker. 1894 The Fact of Marriage and the Limits of Divorce. . . Chaa. G. Garrison. 1895 Proposed Changes in Penn- sylvania Practice John B. McPherson. 1896 Expert Testimony Gustav A. Endlich. 1897 The Jury John Dean. 1898 Special Issues and General Issues Mayer Sulzberger. 1899 Constitutional Government in Theory and in Prac- tice John Dalzell. 1900 Reminiscences of the Bench and Bar Craig Biddle. 1901 Some of the Conditions of a Lawyer's Success J. Hay Brown. 1902 The Pennsylvania Coal Company v. Sanderson, a Study Robert W. Archbald. 1903 The Practical Conduct of a Jury Trial Alex. Simpson, Jr. 1904 The Several Modes of In- stituting Criminal Pro- ceedings in Pennsyl- vania John C. Bell. 46 1905 The Expansion of Equity 1906 Tl!^ T^!°°"'l'"f '' ■^""«» P- Poifr. 1906 The Duties of the Attorney General of Pennsylvania and Practice Pertaining 1507 The Present Status of the 1908 Th^?l' ^'"''t'"' ■""""" ^- Porter. 1508 The Lawyer's Duty in the Preservation of Civil and lono o "*"«^™' I-'l^rty Alton B. Parker 1909 Some of the Modem De- velopments of Intema- 1910 Deir,' ^"^ • V Charlemagne Tower. i»I0 Democracy — Its Fingi 1911 jf^/i. Pe««r S. Groescup. i»l-i The Advent of Co-opera- „„ J ?.'™. ■••• Martin A. Knapp. 1813 Initiative and Responsibility of the Eiecutive: A Remedy for Inefficient 191^ M ^"'"^.f"'' Heniy L. Stimson. 1915 Neutrality— Permanent Dif- ficulties and Present iai« p ^°"'' Frederic R, Coudert 1916 Powers of the Executive. . William Howard Taft 1917 Magna Carta wiUiam Renwiok Kddell. '